Thursday, May 9, 2013

The Mystique of Delgamuukw v. British Columbia

The Mystique of Delgamuukw v. British Columbia

By Ted Santos
The Daily Magi
December 10, 2042

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a decision of the Supreme Court of Canada where the Court expressly and explicitly declined to make any definitive statement on the nature of aboriginal title in Canada. The Court held at paragraphs 74, 75 and 77 that, [74] "I reject the submission with respect to the substitution of aboriginal title and self-government for the original claims of ownership and jurisdiction … [75] The content of common law aboriginal title, for example, has not been authoritatively determined by this Court … [77] This defect in the pleadings prevents this Court from considering the merits of this appeal.”

The relevance of the case for aboriginal title derives from what the Chief Justice Lamer ruled in a dialogue from the Bench with counsel Bruce Clark appearing on a preliminary objection to the Court's territorial jurisdiction based upon the Indian Tribe's unsurrendered territorial sovereignty. The Court Transcript finds the Chief Justice saying, “If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this is an issue that has never been tried.… There is no doubt that it is a constitutional issue. … Is that all you have to say on the constitutional question?”

For these reasons the precedent value of the Delgamuukw is that the constitutional question of the paramountcy over a Crown Government’s and Court’s jurisdiction of an Indian Tribe’s territorial sovereignty pending proof of a surrender, by treaty, is a legitimate and outstanding constitutional question that this Court has never decided, because it has never been tried. Aside from that, the Court expressly and explicitly refused to decide anything of precedent value regarding the Indian constitutional interest.

he proceedings were started in 1984 by the Gitksan and the Wet'suwet'en Nation. They bypassed the slow Federal Land Claims process in which the British Columbia Provincial Government would not participate.

They claimed ownership and legal jurisdiction over 133 individual hereditary territories, a total of 58,000 square kilometres of northwestern British Columbia, an area larger than the province of Nova Scotia.

The Gitksan and Witsuwit'en used their oral histories as principal evidence in the case.

The Crown of British Columbia insisted that all First Nations land rights in British Columbia were extinguished by the colonial government before it became part of Canada in 1871. Moreover, Chief Justice Allan McEachern ruled that aboriginal rights in general existed at the "pleasure of the crown" and could thus be extinguished "whenever the intention of the Crown to do so is clear and plain." (In the Court of Appeal, the Province changed its position to argue that aboriginal land rights had not been extinguished.) Under his reasoning, the Aboriginal title and Aboriginal right of self-government claimed by the plaintiffs had been erased over a century previously, and as such were precluded from qualifying as "existing" rights under subsection 35(1) of the Constitution Act, 1982. His ruling was seen by many as seriously at odds with Supreme Court of Canada rulings dealing with constitutional Aboriginal and treaty rights, and was also criticized for its apparent bias in both tone and analytic approach.[2] Justice McEachern found that the "broad concepts embodied in oral tradition, did not conform to juridical definitions of truth,"[3] stating: "I am unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence." Although these courtroom proceedings established the precedent of First Nations presenting their claims to land through the use of oral tradition, Justice McEachern ruled that oral tradition could not stand on its own as historical evidence. In order to bear an impact on the proceedings it must be supported by forms of evidence recognized by the court.

The Supreme Court made no decision on the land dispute, insisting that another trial was necessary. Specifically, [at paragraph 74 of the Court's decision] the Court held, "I reject the submission with respect to the substitution of aboriginal title and the self-government for the original claims of ownership and jurisdiction....[paragraph 75] The content of common law aboriginal title, for example, has not been authoritatively determined by this Court...[paragraph 77] This defect in the pleadings prevents this Court from considering the merits of this appeal."

The legal significance of those passages is that the Indian "Interest" within the meaning of section 109 of the Constitution Act, 1867, was not involved in the appeal. Section 109 is the section that says the Crown's CONSTITUTIONAL "Interest" is subject to the Indian CONSTITUTIONAL "Interest" so long as the Indian "Interest" has not been sold to the Crown by a valid treaty. It confirms that Indian sovereignty, i.e., exclusive jurisdiction and sole possession, is the supreme law of the land pending treaty and, correspondingly, establishes the utter irrelevance of Crown Parliamentary legislation and Crown court recent inventions based upon the "common law".

It is widely held that "The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.

It has been claimed that the case was improperly framed by the lawyers who filed the case and it decided nothing nor could it have decided anything.

The Delgamuukw court case has important implications for the history of Canada and for the idea of history itself. In this case the court gave greater weight to oral history than to written evidence. Of oral histories the court said "they are tangential to the ultimate purpose of the fact-finding process at trial -- the determination of the historical truth."

In A Fair Country, John Ralston Saul writes about the broader significance of the court's recognition of oral evidence as carrying as much or greater weight as written evidence, on Canadian society.

The only legal difficulty with Saul's perception is that oral history is not relevant to the definition of the Indian Tribes' constitutional interest, that being determined by the paramountcy clause section 109 of the Constitution Act, 1867, as settled by the precedents St Catherine's Milling and Lumber Co. v. The Queen, and Attorney General of Canada v. Attorney General of Ontario: In re Indian Claims, Those cases held the Indian constitutional "Interest" is paramount over the Crown's constitutional "Interest" until surrendered by treaty, that being the legal consequence of the treaty process in Canada.

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